In defense of the right to robocall

Political robocalls can often be annoying. They may come during the dinner hour, slant the truth or even peddle outright falsehood. They can arrive several times a day — perhaps even more often than that near Election Day, if you live in a hotly contested state. Even if received in moderation, they can tax our patience and offend our sense of decorum with what can be appeals to “gutter politics.”

Fully acknowledging this, Congress should resist recent efforts by some members to severely restrict or ban these calls. While robocalls may be conveyed by machines with artificial intelligence, at their core, these calls are citizen-to-citizen communication about the political issues of the day. Such speech is First Amendment activity, and limiting it should not be undertaken lightly.

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Sen. Dianne Feinstein (D-Calif.), in particular, seems amenable to sweeping restrictions on this type of speech. At a recent hearing of the Senate Rules and Administration Committee, of which she is chairwoman, Feinstein voiced support for amending the Federal Do Not Call Registry to add robocalls to its list of prohibited communications.

Such an amendment would be very unwise and would likely be unconstitutional. The Do Not Call Registry is premised on the idea that Congress has been given great leeway under the Constitution to regulate commercial speech — telemarketers selling insurance and diet pills, for example.

This leeway does not exist when Congress attempts to regulate political speech, which is afforded the highest level of protection under the First Amendment. From a court’s perspective, a ban on political robocalls should be considered a much more serious restriction than the government hindrance of an individual’s ability to make a profit over the phone, because such restrictions have the effect of hindering democratic self-government itself.

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The Supreme Court has held that the First Amendment serves the cause of self-governance by ensuring that debate on public issues is “uninhibited, robust and wide-open.” To that end, the political marketplace of ideas functions best when there is a large quantity of speech, from as many different sources as possible, available for consumption in the public sphere.

A total ban on robocalls would inhibit the effectiveness of this market by giving speakers who can afford to utilize established channels of communication an advantage over those who lack the means to speak through these channels.

One robocall vendor recently testified that the practice could reach 1.7 million homes in seven hours, at a cost of only 15 cents per call. This is dramatically more efficient than the cost of employing live operators, who on average charge $2.25 a call. A requirement that live operators make all political calls would completely nullify the advantages of this inexpensive campaign tool and effectively lock many grass-roots speakers out of the process.

Even though the First Amendment restricts much of what Congress may do with regard to this issue, the government is not powerless to act. Congress could enact regulations that control the time, place and manner in which robocalls and other political speech are made.

Some provisions in the Robocall Privacy Act of 2008, backed by Feinstein and fellow Sens. Arlen Specter (R-Pa.), Richard J. Durbin (D-Ill.) and Daniel Inouye (D-Hawaii), may be constitutionally permissible. For example, one such provision — restricting calls between 9 p.m. and 8 a.m. — is an attempt by Congress that would likely be recognized by the courts as striking an appropriate balance between privacy rights and candidates’ right to free speech.

While such regulation is likely unnecessary (any candidate who chooses to employ robocalls at 1 a.m. is doing himself more harm than good), if Congress must act, it should limit itself to legislation that does not result in the outright censorship of the speaker.

Robocalls present an annoyance to the American people, and the temptation to combat them with regulation can be enticing. But banning certain forms of political communication outright, rather than narrowly tailoring the limits to address specific harms unrelated to the political speech (such as disturbing voters in the middle of the night) would set a dangerous precedent.

Congress should respect the fact that robocalls offer an easy, effective and inexpensive means of communication that gives the recipient an opportunity to learn more about an issue or a candidate. It should tread lightly when contemplating this issue and consider only speech-sensitive proposals. And, without a doubt, Congress should spurn the temptation to muzzle grass-roots speech and trample on the Constitution.

Michael Darner is a legal associate at the Center for Competitive Politics.